Intercode Solutions P. Ltd. v. Armor India Coding and Imaging Supplies P. Ltd.

OMP (I) Comm No. of 2019

Petition under Section 9 of the Arbitration & Conciliation Act, 1996 (See Prayers at Page 43)

List of Dates

Date Event Pages

21 11.2017 Secrecy Agreement was entered into between the Petitioner and Armor SAS 12
France

11.12.2018 Letter of Intent addressed to the founder of the Petitioner by Armor SAS 14
France confirming the intention of acquiring the business of the Petitioner by
the Respondent

03.11.2019 A Business Transfer Agreement was entered into between the Petitioner and 64, 66,
the Respondent whereby the Petitioner sold its business and assets for a sum 71, 81
of Rs. 35 crores, which was payable as follows:

a. Rs. 29.50 crores on closing of the Agreement

b. Rs. 3.5 crores to be paid within 30 days of the closing after working
capital adjustment
c. Rs. 2 crores to be paid as lien amount on the closing of the Agreement

09.07.2019 Email from the Petitioner to the Respondent attaching a letter of credit for 103
procuring raw material and also setting out the amounts payable to Saraswat
Bank

06.08.2019 The parties mutually agreed to extend the Closing Date to 30.08.2019 102

20.08.2019 Communication issued to the customers about the acquisition 108

26.08.2019 Email addressed by the Petitioner setting out the certificate of all obligations 132
in accordance with Schedule G and confirmation of all original documents
required

 No dues from employees 110

 Certificate from the Income Tax Department U/S 281 (1) (a) of the 125
Income Tax Act, 1961
 No dues from R Consultants Pvt. Ltd 130

28.08.2019 Email from the Respondent requesting for an invoice wise list of receivables 134
and payables

29.08.2019 Petitioner provides the details 135

 30.08.2019 Email from the Petitioner recording Minutes of Meeting of 30.08.2019

30.08.2019 Closing Date of the Agreement

Undertaking signed by the Respondent that all representations and warranties 330
given by the Petitioner are true and correct

An amount of Rs. 29.50 crores transferred to the Petitioner

Transfer of employees also takes place on the said date

12.09.2019 Meeting held between the Petitioner, Respondent and Armor SAS France 333

On the same day, the Petitioner sent an email with the attachment of the details
of working capital adjustments

17.09.2019 Meeting held with the founder of the Petitioner for negotiations

20.09.2019 Email from the Petitioner to the Respondent setting out the minutes of the 334
meetings held

27.09.2019 Email from the Petitioner providing the no dues from Saraswat Bank 127,
126
08.11.2019 Letter addressed by the Respondent stating that the balance payments are 338
being withheld

11.11.2019 Petitioner sent email attaching details of payments made to suppliers on behalf 342
of the Respondent

21.11.2019 Email from Petitioner setting out the amounts payable by the Respondent. 341

26.11.2019 Reminder sent by the Petitioner to the Respondent 341

Points to Argue

1. The present petition seeks interim measures by way of a direction to the Respondent to furnish a
reasonable sum of security amounting to Rs. 9,97,98,503/- (Rupees Nine Crores Ninety Seven
Lakhs Ninety Eight Thousand Five Hundred Three Only)

2. Pending furnishing of security, an ex-parte ad interim order restraining the Respondent from sale,
disposal or creating any third-party rights, or creating any encumbrance, directly or indirectly, in
respect of the assets of the Respondent to the extent of amount claimed in the Petition.

3. A Business Transfer Agreement dated 03.05.2019 was executed between the Petitioners and the
Respondent whereby the Petitioner No.1 sold and transferred the business and assets of the
 Petitioner to the Respondent, for an aggregate sum of Rs. 35,00,00,000/- (Rupees Thirty five crore
only), payable in the following terms:

a) INR 29,50,00,000/- paid on the closing date of the Agreement;

b) INR 3,50,00,000/- to be paid within 30 days of the closing date of the Agreement along
with the working capital adjustment of INR 1,31,04,278/-; and
c) INR 2,00,00,000 to be paid as lien amount on the closing date of the Agreement.

4. Thereafter, a letter agreement dated 06.08.2019 was executed by the Petitioner and the
Respondent in furtherance of the Agreement, mutually agreeing to postpone the closing date of
the Agreement to August 30, 2019.

5. That subsequently in compliance of the various terms of the Business Transfer Agreement dated
03.05.2019, the Petitioners duly performed all the obligations under the aforesaid agreement.
However, despite the same, the Respondent blatantly refused to pay the balance consideration
amounting to Rs. 6,81,04,278 /- (Rupees Six Crores Eighty One Lakhs Four Thousand Two
Hundred Seventy Eight Only) under the aforesaid agreement on completely unfounded
allegations.

6. That it is also pertinent to state that at the request of the Respondent, the Petitioner No.1 also
ordered materials post the closing date on behalf of the Respondent . It is stated that the Petitioner
No.1 also made payments amounting to Rs. 3,16,94,225/- (Rupees Three Crores Sixteen Lakhs
Ninety Four Thousand Twenty Two Five Only) for the aforesaid supplies on behalf of the
Respondent, which still remains due and payable by the Respondent.

7. That despite the performance of all obligations and expiry of the stipulated time period, the
Respondent has failed to pay the legitimate dues of the Petitioners amounting to Rs. 9,97,98,503/-
(Rupees Nine Crores Ninety Seven Lakhs Ninety Eight Thousand Five Hundred Three Only). A
perusal of the financials of the Respondent would show that if the amount claimed in the petition
is not secured at this stage, then the Petitioner may not be able to realise the fruits of the arbitral
award that may be passed in its favour.

8. That the Petitioners have a strong prima facie case in its favour. The balance of convenience is
also in its favour. It is evident that if the Petitioner’s interest is not protected at this stage and the
reliefs as prayed for hereinbelow are not granted in its favour and against the Respondent, then
the proposed arbitration shall be rendered redundant even before the same is commenced, causing
irreparably injury to the Petitioners

9. That in view of non-payment of all amounts due and payable to the Petitioner No.1 by the
Respondent; a dispute has arisen between the parties under the Principal Agreement which could
not be resolved amicably despite the best efforts made by the Petitioners. Hence, the Petitioners,
through the present petition, seek to protect their interests until the inter se disputes are referred
to and adjudicated through arbitration and / or making of an award and execution thereof.